Sterilization of an incompetent individual is a hotly contested area of the law. Some states permit sterilization requests and others do not. From a traditional standpoint, the decision of whether to sterilize an incompetent individual is a family decision.

An incompetent individual is an individual who lacks the ability and knowledge to make decisions that would affect his or her life. Often times a guardian or co-guardians are appointed to represent the incompetent individual.

For example, the family’s request to perform a hysterectomy on a 12-year-old mentally challenged girl was upheld by the Indiana Supreme Court. In that case the lower court granted the family’s request due to the girl’s aversion to blood and the fact that it was in the girl’s best interest to permit the procedure.

Some states, as does Indiana, permits the family to make a decision regarding sterilization of an incompetent individual on the basis that the parents of the individual have the authority to consent to any legitimate medical treatment.

However, even in states that permit or are open to permitting families and service providers to make sterilization decisions, individuals that actually seek sterilization of the incompetent individual should be concerned about liability if they act inappropriately. There have been courts that have found that an incompetent individual who was improperly sterilized was able to bring a discrimination action against a hospital that performed the procedure and the individuals who sought that the procedure take place.

Caselaw and Sterilization

The caselaw with respect to the sterilization of an incompetent individual falls into one of three categories. The categories include:

• The view that the ultimate decision making authority is subject to due process protections.
• The view that the legislatures should dictate how personal decisions such as sterilization should be made.
• The view that the courts be permitted to allow medical authorities, parents, and guardians to make the decision of whether the incompetent individual should be sterilized when it is in the best interest of the individual.

First, some states require that due process protections be afforded to the incompetent individual with respect to the issue of sterilization. In those states sterilization is generally not permitted. Second, in other states, the legislatures have either deemed that sterilization is permitted or not permitted with respect to incompetent individuals. Last, some states simply rely upon judicial authorities to determine whether sterilization in certain instances will be permitted.

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